697 F.2d 309 (D.C. Cir. 1982), 82-2369, McSurely v. McClellan

Docket Nº:82-2369.
Citation:697 F.2d 309
Party Name:Alan McSURELY, et al. v. John L. McCLELLAN, et al. Thomas Ratliff, individually and as sometime Commonwealth Attorney for Pike County, Kentucky, Appellant.
Case Date:December 10, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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697 F.2d 309 (D.C. Cir. 1982)

Alan McSURELY, et al.


John L. McCLELLAN, et al.

Thomas Ratliff, individually and as sometime Commonwealth

Attorney for Pike County, Kentucky, Appellant.

No. 82-2369.

United States Court of Appeals, District of Columbia Circuit

December 10, 1982

Submitted Nov. 18, 1982.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 69-0516).

Benjamin L. Zelenko, B. Michael Rauh, and Martin Shulman, Washington, D.C., were on the brief for appellant.

Morton Stavis, Hoboken, N.J., Randolph Scott-McLaughlin, Broadway, N.Y. and Charles N. Mason, Jr., Washington, D.C., were on the brief for appellees.

Before WALD and SCALIA, Circuit Judges.



In August 1967, Kentucky officials, executing warrants issued under a state sedition statute, arrested the McSurelys (appellees) and seized books, papers, and other personal possessions from their home. Shortly thereafter, a federal court declared the state statute unconstitutional, enjoined prosecution, and ordered the appellant Thomas B. Ratliff (Commonwealth Attorney for Pike County, Kentucky) to hold the seized material in safekeeping pending final disposition of the case. McSurely v. McClellan, 282 F.Supp. 848 (E.D.Ky.1967), app. dismissed, 390 U.S. 412, 88 S.Ct. 1112, 19 L.Ed.2d 1272 (1968). The state prosecutor subsequently made these papers available to a Senate subcommittee investigating riots which occurred in Nashville, Tennessee earlier that year. In 1969, the McSurelys sued Senator John L. McClellan (Chairman of the Senate subcommittee), several subcommittee staffers, and appellant, claiming that the defendants had unlawfully seized and disseminated personal papers from their home and seeking compensatory and punitive damages for loss of employment, invasion of privacy, and embarrassment resulting from these actions.

Shortly before trial, Ratliff moved for dismissal or, in the alternative, for summary judgment based on claims of absolute and qualified prosecutorial immunity. The district court denied this motion and an oral request for stay pending appeal. Ratliff appealed and moved this court for stay pending appeal. We denied his request for stay, but expedited consideration of the appeal. We now affirm the district court's order. Ratliff's investigation and arrest of the McSurelys and his subsequent actions as custodian of the McSurelys' papers are not advocative functions and thus are not protected by absolute immunity from suit. Moreover, Ratliff is not entitled to summary judgment on qualified immunity because material facts are placed in dispute by the McSurelys' proffer of evidence that Ratliff should have known that his actions were illegal.


This court's earlier opinions in United States v. McSurely, 473 F.2d 1178, 1180-84 (D.C.Cir.1972), and McSurely v. McClellan, 426 F.2d 664, 666-67 (D.C.Cir.1970) describe in detail much of the factual background of this lawsuit. Because this case arises on pretrial motion, we construe the facts which remain in dispute in the light most favorable to the McSurelys. In brief, Alan and Margaret McSurely were field organizers for the Southern Conference Educational Fund, Inc. Alan McSurely was also connected with the National Conference of New Politics and Vietnam Summer. According to the McSurelys, their duties included investigating the socio-political milieu of Pike County, informing the people of their legal rights, and helping local citizens to organize to overcome their problems.

On August 11, 1967, Ratliff and approximately twenty other persons, including local businessmen, the McSurelys' landlord, and a local judge, met at the Pikeville courthouse to discuss the McSurelys' activities and to plan the McSurelys' arrest for sedition and a search of their home. 1 At the meeting, Ratliff stated that a Pike

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County jury would "undoubtedly" convict the McSurelys and that, although the conviction would "probably" be overturned on appeal, "his purposes would be accomplished by the initial conviction." 2 He prepared an affidavit for the McSurelys' landlord to sign and then presented the signed affidavit to the local judge, who prepared an arrest warrant for Alan McSurely and a search warrant for the McSurelys' home. 3 The arrest warrant charged McSurely with sedition against the state in violation of Ky.Rev.Stat. Sec. 432.040. 4 The search warrant authorized in general terms the seizure of "seditious matter or printing press or other machinery to print or circulate seditious matter." In an earlier proceeding, we found that the affidavit, in part because it was based on hearsay, did not "support a finding of probable cause," United States v. McSurely, 473 F.2d 1178, 1187 (D.C.Cir.1972). We further described the search warrant as "the very antithesis of the 'particularity' required by the Fourth Amendment." Id. at 1189.

On the evening of August 11, pursuant to the warrant, Pike County officials, directed by Ratliff, arrested Alan McSurely and searched the McSurelys' home. The search appears to have gone far beyond the warrant's scope. See id. at 1187-88. During the search, which lasted several hours, Ratliff discovered that Margaret McSurely had once been employed by the Student Non-Violent Coordinating Committee. He thereupon obtained a warrant for her arrest as well. 5

On September 14, 1967, in response to a complaint filed by the McSurelys, a three-judge district court in Kentucky (one judge dissenting on procedural grounds) held the sedition statute unconstitutional on its face and enjoined state prosecution of the McSurelys. McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967), app. dismissed, 390 U.S. 412, 88 S.Ct. 1112, 19 L.Ed.2d 1272 (1968). 6 The court also directed Ratliff to hold "in safekeeping" the materials taken from the McSurelys' home, pending a possible appeal of the court's decision. 7 No appeal was ever filed.

Shortly thereafter, Laverne Duffy, Assistant Counsel to the Permanent Subcommittee on Investigations (Subcommittee) of the Senate Committee on Government Operations, contacted Ratliff by telephone to inquire about the seized items. Pursuant to this telephone call, a Subcommittee investigator, John Brick, visited Ratliff in Pikeville. Ratliff, concerned that the safekeeping order might prohibit his allowing Brick to examine the McSurely materials, telephoned Judge Moynahan, the dissenting

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judge on the three-judge panel that had issued the order, for advice. The judge was noncommittal. As Judge Moynahan later explained in his deposition:

I didn't think it behooved me to give him legal advice but he persisted and I said, well, I'm not going to tell you to get into any confrontation with the Senate Committee. 8

Ratliff made no further inquiry into his duties under the safekeeping order.

Brick confirmed with Ratliff that the McSurely material contained information relating to the activities of a number of organizations in which the Subcommittee was interested. Ratliff permitted Brick to examine and make notes on the seized materials and provided him with copies of 234 of the documents, which Brick took back with him to Washington. 473 F.2d at 1191. A number of Margaret McSurely's personal possessions were among the copied materials, including the names and addresses of friends and a love letter from a prominent Washington columnist. Subsequently, on October 16, 1967, at the direction of Senator McClellan, Chairman of the Subcommittee, Brick subpoenaed certain of the McSurely materials in Ratliff's possession.

When the McSurelys received the subpoenas, they asked the three-judge court for an order prohibiting Ratliff from releasing the subpoenaed materials to the Subcommittee and directing him to return the seized materials. Substantial litigation followed, culminating in a Sixth Circuit ruling that the documents must be returned to the McSurelys, but without prejudice to the Subcommittee's right to enforce the subpoenas. McSurely v. Ratliff, 398 F.2d 817 (6th Cir.1968).

Upon receipt of these materials, the McSurelys were immediately served with new subpoenas. They appeared before the Subcommittee on March 4, 1969, but refused to produce the subpoenaed materials. Pursuant to a Senate resolution, they were indicted for contempt of Congress on August 29, 1969, tried in the district court for the District of Columbia, and convicted on June 20, 1970. On appeal, we reversed the conviction, ruling that the subpoenas were invalid because the Subcommittee, in framing them, had relied on information which was the fruit of an unconstitutional search. United States v. McSurely, 473 F.2d at 1194.

The McSurelys filed this damages action in the district court on March 4, 1969 (the same day they appeared before the Subcommittee) alleging violations of their rights under 42 U.S.C. Secs. 1981, 1983, and 1985, and under the first, fourth, fifth, and fourteenth amendments of the Constitution, and seeking $100,000 compensatory and $100,000 punitive damages from each defendant for loss of employment, invasion of privacy, and humiliation and embarrassment resulting from the various actions of the defendants. The district court stayed all proceedings pending final resolution of the criminal case against the McSurelys. On December 26, 1970, we vacated that stay as overbroad, and remanded for further proceedings. McSurely v. McClellan, 426 F.2d 664 (D.C.Cir.1970). Shortly thereafter, the federal defendants moved to dismiss or, alternatively, for summary judgment, claiming legislative immunity. The district court denied the motion, rejected a request for reconsideration or certification under 28 U.S.C. Sec. 1292(b) of the issue of legislative immunity, but stayed discovery by the McSurelys.

On appeal, we assumed...

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